Back to Index

Major victory for MDC
Nelson Banya, Financial Gazette (Zimbabwe)
July 27, 2006

http://www.zwnews.com/print.cfm?ArticleID=14845

Zimbabwe's Supreme Court has ruled that the appointment of judges by the Chief Justice to the electoral court, which was established last year as part of a series of electoral reforms, was inconsistent with the constitution and is, thus, void. The landmark unanimous ruling, which has significant implications for the electoral process in this country, was made on Tuesday by Supreme Court Justices Cheda, Malaba, Sandura, Gwaunza and Ziyambi. It renders all rulings made by the court null and void. As a consequence, legal experts told The Financial Gazette, that all the 16 election petitions filed by Movement for Democratic Change (MDC) candidates following the March 2005 elections are still actionble, as is former Chimanimani legislator Roy Bennet's challenge against his disqualification from contesting in the election. The ruling, written by Justice Malaba and delivered by Justice Cheda, also effectively strikes down section 162(1) of the Electoral Act, which empowered the Chief Justice to appoint judges to the special Electoral Court.

The opposition MDC and its candidate for Goromonzi constituency in the March 2005 elections, Claudious Marimo, had made an application to have the Electoral Court declared improperly constituted. Justice Minister Patrick Chinamasa, the Attorney-General Sobusa Gula-Ndebele, Chief Justice Godfrey Chidyausiku and Zanu PF's winning candidate for the Goromonzi constituency, Finance Minister Herbert Murerwa were cited as respondents. The opposition party's candidates in 16 constituencies, who had filed petitions challenging the results of the March 31 2005 election, applied for the withdrawal of their petitions before the Electoral Court, pending the Supreme Court determination on the legality of the special court. However, the Electoral Court judges declined to grant their requests. The Supreme Court found that they had erred in this regard. The Minister of Justice and the Attorney-General are now jointly and severally liable to pay the costs of the application. The Chief Justice, who did not oppose the application, was absolved.

"Under section 162(1) of the (Electoral) Act, Parliament empowers the Chief Justice to appoint a sitting judge of the High Court to preside over the Electoral Court which is a special court after consulting the Judge President. It transferred the right to be consulted on the appointment of judges of the High Court to exercise judicial power vested in a special court from the Judicial Services Commission to the Judge President. Parliament had no power to do that. It was under a duty to provide that the judges of the High Court were to be appointed to preside over the Electoral Court in the manner prescribed under section 92(1) of the Constitution. Failure to so provide means that section 162(1) of the Act is inconsistent with section 92(1) of the Constitution," the Supreme Court ruled. Section 92(1) of the Constitution vests the power to appoint judges in the President and makes consultation with the Judicial Services Commission a mandatory requirement for a valid appointment.

Chief Justice Chidyausiku appeared to accept the validity of the applicants' contention on the appointment of judges to the special court and revoked the appointment of the judges, only to reinstate them in the same letter, saying the fresh appointment was now in accordance with the law. "It has been brought to my attention that some of the litigants in the electoral petition are unhappy about your previous appointment as a judge of the Electoral Court because the Judicial Service Commission was not consulted in terms of section 92(1) of the Constitution. In the event of my appointment of you as a judge of the Electoral Court on 5 May 2005 not being in accordance with the law it is hereby revoked. Please be advised that I, in my capacity as Chief Justice of Zimbabwe and after consultation with the Judge President and the Judicial Service Commission, have appointed you as a judge of the Electoral Court with effect from this day the 1st June of 2005," Chidyausiku wrote to each of the judges. However, the fresh appointments were also deemed illegal as no Act of Parliament authorised the Chief Justice to appoint the judges of the High Court to the special court.

Chris Mhike of Atherston and Cook who, together with Sheila Jarvis instructed Advocate Eric Matinenga and Edith Mushore, yesterday said all decisions made by the Electoral Court had been rendered useless. "The dismissals, rejections and verdicts that had been passed by any of the Electoral Court judges have become meaningless," Mhike said. He, however, conceded that the the stipulated six-month window for petitioners had elapsed. "The difficulty for the petitioners is that the six-month period, in which election petitions had to be determined, has now lapsed while government refused to correct the law, and electoral court judges refused to refer the question of their appointment. There must be, at law, some solution or remedy to the petitioners to cure this injustice, since the Supreme Court specifically recognised that they were denied a fair hearing within a reasonable time by a properly constituted court." Mhike said he was still awaiting further instructions from the clients on the matter.

Please credit www.kubatana.net if you make use of material from this website. This work is licensed under a Creative Commons License unless stated otherwise.

TOP